Infected blood scandal: government has promised compensation but will justice really be done?

A lawyer who has helped many victims fight for compensation reviews the government’s plan.

The UK government has announced its plan to compensate thousands of infected blood victims and families. Following the publication of the long-awaited final report of the infected blood inquiry, the paymaster general, John Glen, announced a new infected blood compensation scheme. Some estimates suggest the scheme will top £10 billion.

The scheme will compensate victims directly and indirectly infected with hepatitis B, hepatitis C and HIV with NHS-supplied blood products or tissue. More than 30,000 people were infected, many of whom have since died. Both infected people and their families may be eligible to apply for compensation under the new scheme.

Read more: Infected blood scandal – what you need to know

Interim payments of £210,000 will be made to living infected victims and certain other affected groups within 90 days. This takes account of the fact that not only is such compensation well overdue, but it will take time for the scheme to become fully operational and for assessment of final total compensation to take place. Any interim payments made will be deducted from final awards of compensation.

People may be awarded compensation for loss, social impact, infringement of autonomy, past and future care needs and financial loss. Modelling shows that some victims may be entitled to more than £2 million in compensation, though average awards are likely to be substantially less.

Payments will be calculated using a tariff-based approach, which means that compensation will be assessed based on predetermined criteria and rates. The government says this will avoid intrusive questioning and traumatising victims all over again. The payments will be exempt from income tax, capital gains tax and inheritance tax.

The scheme will be overseen by an independent arms-length body, the Infected Blood Compensation Authority. The interim chair will be Sir Robert Francis KC, who previously undertook a study on compensation options at the government’s request in 2022. At the time, the inquiry indicated its overall support for the findings of the Francis study, and called in successive interim reports for compensation to be paid immediately to victims and families.

The UK government did subsequently make interim payments of £100,000 to thousands of registered infected victims in late 2022, in addition to indicating support for the statutory recognition of an infected blood compensation scheme. But no further information had been released about the scope of the scheme until this week.

An international scandal

The UK’s infected blood scandal is not the only one. Around the world, people who received blood transfusions and suffered from bleeding disorders were infected by contaminated donations, particularly in the 1970s and 1980s. Countries have taken different approaches to financial compensation for victims, through government schemes and individual payments.

In many cases, compensation came as part of a legal settlement following drawn-out, hard-fought court cases. As a lawyer, I acted for hundreds of infected blood victims in these types of cases. Where settlements were achieved, they took account of victims’ individual circumstances, with compensation often being much larger than those received under government schemes.

Until now, the UK government and the devolved nations have clearly preferred what is known as an ex gratia approach – piecemeal and discretionary payments to cover demonstrated daily life and financial hardships, for example. Over decades, they have offered limited financial support to victims, most recently through infected blood support schemes.

The government’s preference for an ex gratia scheme has rested on the moral case for showing compassion to a limited group of infected blood victims. At the same time, it sought to avoid any admission of legal responsibility for the circumstances that led to the infected blood scandal.

All in all, the government’s approach so far has offered limited financial support, and has not fully addressed the wrongs suffered by infected blood victims and their families.

A long road to just compensation

This new scheme is an interesting hybrid approach to government-sponsored compensation schemes in response to harm caused in healthcare settings. Drawing on the Francis study, which recognised the unique position of infected blood victims, it also draws on well-established legal principles for assessing financial compensation.

As with many of these types of schemes, the devil will be in the detail as to how questions of eligibility, application of tariffs, timing of payments and challenges to awards will be dealt with. Beyond initial consultation, it is also not clear how infected victims will be included in oversight of the scheme. Given how they have been treated to date, their ongoing involvement in evaluation of the scheme is important.

It has been a demoralising and frustrating battle for infected blood victims to obtain compensation. The UK prime minister has described it as “long overdue”, given the immense harm done to them as a result of medical treatment received in the NHS.

While payment of financial compensation can never fully restore what thousands of infected blood victims and their families have tragically lost, the new scheme will go some way towards recognising the injustice they have suffered arising from one of the greatest healthcare scandals in the history of the British state.

Anne-Maree Farrell has received funding from the Australian Research Council, British Academy, Economic and Social Research Council, Leverhulme Trust and Wellcome. She previously worked as a lawyer in private practice and represented hundreds of claimants in infected blood litigation in Australia, Ireland and New Zealand and consulted on such litigation in Canada and the United States.